North Dakota Attorney General Opinions

OPINION 49-195 November 21, 1949 (OPINION) TOWNSHIPS RE: Share of Funds Yours of the 17th inst. relative to Fryburg Township has been received and referred to my desk. You state that Fryburg Township thinks that it should receive a share in the following funds: First: Motor fuel tax: The allocation of the part of this fund not going to the State Highway Fund, (2/3 to State Highway Fund) is to the various counties in proportion to the number of motor vehicles registered in each county to the total number of motor vehicles in the entire state. Each county's share is to be

OPINION 49-38 November 15, 1949 (OPINION) DRAINS RE: Drain Commissioners - Power of In a letter addressed to you under the date of November 10, 1949, Mr. Elmer L. Worthington, District Conservationist of the U.S. Department of Agriculture, Bottineau, North Dakota, asked you to request the opinion of the Attorney General as to legal right of the Board of Drain Commissioners to construct a drain terminating in an established drain, for the drainage of lands which were not assessed for the costs of constructing the established drain. Under the provisions of Section 61-2133 of the

OPINION 49-84 November 12, 1949 (OPINION) HEART BUTTE IRRIGATION DISTRICT Your letter under date of August 28, 1949, addressed to Honorable Wallace Warner, Attorney General, and the questionnaire attached thereto, has been referred to me as Special Assistant Attorney General for the State Water Conservation Commission for consideration and reply. I shall state my opinion as to each of your questions in the order set forth in your questionnaire. "Question 1: What lands in the irrigation district are assessable, and how will the designation of assessments on various tracts, parcel

OPINION 49-208 November 3, 1949 (OPINION) WELFARE RE: Soldier's Bonus is a Gratuitous Payment I have your letter dated October 27th, 1949, in which you state that a widow is receiving old age assistance of $404.00 per month, which is administered by the State Welfare Society and they have informed her what she must do with this bonus she is about to receive, as the mother of a deceased son, who was entitled to a bonus payment. You further state that she was instructed that she must set aside a portion of this bonus to take care of her own funeral expense when she dies, and us

OPINION 49-67 October 31, 1949 (OPINION) GAME AND FISH RE: Bounty Payments Your letter of October 27, 1949, has been referred to the undersigned for answer. In your letter your request our opinion as to whether it is sufficient to exhibit the head and ears together with the tail of a coyote or fox for the purpose of collecting bounty. The statute, section 20-1302 of the 1943 Revised Code, is quite explicit in requiring that the skin of such animal, including the tail, the skin for the forehead, and both ears, and the skull, be exhibited. I am of the opinion that exhibiting th

OPINION 49-191 October 31, 1949 (OPINION) TOWNSHIPS RE: Easements Your letter of October 27, 1949, has been referred to the undersigned for answer. In your letter you state that a township in your county has given to a telephone company a right-of-way to place telephone poles and wires along a township highway; that the highway is located on a section line; and that the poles will be placed within the 33 feet on each side of the section line which is allowed, by statute, for highway purposes. You then ask, "May the township give such an easement and may such an easement for r

OPINION 49-80 October 25, 1949 (OPINION) GAME AND FISH RE: Migratory Bird Hunting Stamp Yours of this date, requesting the opinion of this office as to the construction of Section 718a, Title 16, U.S.C.A. (Vol. 16), has been received and referred to my desk. This section provides that "No person over sixteen years of age shall take any migratory waterfowl unless at the time of such taking he carries on his person an unexpired federalmigratory-bird hunting stamp validated by his signature written by himself in ink across the face of the stamp prior to his taking such birds;* * *

OPINION 49-83 October 24, 1949 (OPINION) GAME AND FISH RE: Seizure of Gun Re: Chapter 20-10 N.D.R.C. 1943 Your letter of the 19th inst. involving the construction of the above chapter has been received and referred to my desk. You state that recently a party was arrested for a game law violation and pleaded guilty. You also state that the game warden seized the gun used in the violation, and that the gun had been purchased on a conditional sales contract and was only about one third paid for. You ask whether, in our opinion, this gun was subject to seizure and condemnation.

OPINION 49-154 October 24, 1949 (OPINION) OFFICERS RE: Sickness Re: Section 44-0201 of 1947 Supplement Your letter of October 20th, re the above, has been received and referred to my desk. Your letter is short and is as follows: In case an official of a county office is ill for over sixty days and unable to perform the duties of his office how long will the county have to pay him his monthly salary? Will this go on indefinitely or will the officer still retain his title and remuneration?" To answer your question we must construe the above section. It is our opinion that,

OPINION 49-52 October 21, 1949 (OPINION) ELECTIONS RE: Resignation of Mayor Your letter of October 19, re the situation in your city resulting from the resignation of your mayor, has been received and referred to my desk. You state that your then mayor resigned on July 5, 1949; that your next regular city election will be held in April, 1950; that your city council accepted such resignation; that your council, on July 13th, elected one of your aldermen to act as mayor until the next regular election. This all complies with the provisions of section 40-0816 N.D.R.C. 1943. Y

OPINION 49-167 October 21, 1949 (OPINION) RECORDING RE: Filing of Conditional Sales Contract Your letter of the 18th inst. has been referred to my desk. You ask whether a conditional sales contract may be filed in your office when the execution thereof has not been proven by the signatures of two witnesses, or by an acknowledgement. Conditional sales contracts are authorized by section 51-0121 N.D.R.C. 1943. Section 51-0710 provides that all reservations of title to personal property, as security for the purchase price thereof, when the possession of such property is delivered

OPINION 49-190 October 20, 1949 (OPINION) TOWNSHIPS RE: Culverts Your letter of the 17th inst., re duty of township to enlarge culvert in road to accommodate an increased flow caused by an artificial drain constructed by a landowner, has been received and referred to my desk. 67 C.J., page 875, says: * * *an upper owner has no right to increase materially the quantity or volume of water discharged upon the lower estate; * * *." In view of this statement of the law, it is our opinion that the upper owner had no right to construct an artificial drain which would materially inc

OPINION 49-176 October 14, 1949 (OPINION) TAXATION RE: Estates The question has been submitted to this office with reference to the application of Chapter 338 of the Session Laws of 1949. This chapter amends section 57-3716 N.D.R.C. 1943, relating to estate taxes. Section 57-3716 provides that the estate taxes shall be due and payable at the death of the decedent and if not paid within one year after the death of the decedent shall bear interest at the rate of six percent per annum to be computed from the expiration of one year after death of decedent until the amount is paid.

OPINION 49-182 October 13, 1949 (OPINION) TAXATION RE: Minerals Re:L Chap. 57-49 1947 Supplement Your letter of October 10th, re the above, has been received and referred to my desk. This Act, in express terms, imposes a tax only on the grantor in a deed when he reserves any interest in the minerals which may lie on or in land. It does not purport to lay any tax on the mineral rights which may be conveyed by deed. Therefore, where a grantor by deed grants the surface rights to and and reserves any interest in minerals therein or thereon to himself, he, himself, becomes l

OPINION 49-92 October 7, 1949 (OPINION) INSURANCE RE: Gift of Fire Alarm to Each Policy Purchaser Illegal You have asked this office for an opinion in regard to a letter written by Mr. W.E. LaPlante, on October 3, 1949, to the Insurance Commissioner. In his letter, Mr. LaPlante is suggesting that one of two types of fire alarms systems be given to the purchaser of an insurance policy from his company. In the letter he writes: "I am suggesting to one of my insurance companies that they give one or another of these alarms to each policyholder who purchases insurance with a prem

OPINION 49-126 October 3, 1949 (OPINION) LIQUOR RE: Sunday Sales are Violation of Sabbath Breaking Act I have your letter in which you state that a certain retail dealer in alcoholic beverages sold intoxicating beverages after the hour of midnight Saturday night and on Sunday morning. You ask for an opinion whether or not this is a violation of section 5-0509, subsection 4 of the 1947 supplement to the 1943 Revised Code, which states that the holder of a license shall not be authorized to sell or permit the consumption of beer or alcoholic beverages on any licensed premises,

OPINION 49-11 October 3, 1949 (OPINION) BONDS RE: Dealers Re: International Harvester Company - Dealer's Bonds This is in reply to your request this morning for an opinion as to whether or not the International Harvester Company, a corporation, is required to furnish a bond under chapter 244 of the Session Laws of 1949 for each of its dealers in North Dakota. This company has a dealer in each of the three cities of Grand Forks, Fargo and Bismarck and a dealer's license has been issued to each of these dealers. The International Harvester Company is a corporation and as such

OPINION 49-58 September 30, 1949 (OPINION) ELECTRICAL COOPERATIVES RE: Emergency When you were in the office on September 28, you asked me to pass on the legality of action taken by the Baker Electric Cooperative in declaring an emergency as provided in section 9 of House Bill No. 288 of the 1949 Legislative Session. The excerpts from the minutes show that a motion was made, seconded, and carried that certain people be allowed to do electrical wiring under the emergency clause. This motion took place at the directors meeting on August 25, 1949. The minutes of the meeting do

OPINION 49-93 September 29, 1949 (OPINION) INSURANCE RE: Investment of Funds You have asked whether the Home Protective Benevolent Society may invest funds of the company in real property or land. Section 26-2501 of the North Dakota Revised Code of 1943, as amended by chapter 208 of the 1945 Session Laws, provides, "Benevolent societies, as defined in section 26-2502, shall be under the jurisdiction of the commissioner of insurance and shall be and remain subject to all the laws, rules and regulations applicable to insurance companies transacting business within this state, exc

OPINION 49-150 September 29, 1949 (OPINION) OFFICERS RE: Judges' Retirement This is in reply to your letter of September 27 in which you ask for an opinion of this office as to whether judges of the supreme court retired under Chapters 206 and 207 of the 1949 Session Laws are required to pay the assessments provided for by Section 2 of Chapter 206. Chapter 206 provides for the retirement of judges who have reached the age of seventy years and who have served in a judicial capacity for eighteen years. Section 4 of said Act provides that any such retired judge shall for the re

OPINION 49-29 September 23, 1949 (OPINION) COUNTIES RE: Club Work Re: Chapter 2, S.L.1949 Yours re payment of appropriation made by Chapter 2 S.L. 1949 for boys' and girls' club work for Sioux County, addressed to the attorney general, has come to my desk for reply. It appears that Irvin D. Morrison, County Agent for Grant County, serves as part time county agent for Sioux County. He has made application for payment of the $200.00 appropriation for Sioux County for payment of premiums for boys and girls club work in Sioux County. It further appears that Sioux County is to

OPINION 49-128 September 22, 1949 (OPINION) MARRIAGE RE: Certified Copy of Decree of Divorce Re: Section 14-0317 R.C. 1943 Yours of the 21st inst. regarding the requirement of section 14-0317 (2) that a certified copy of the decree of divorce be filed by any applicant for a marriage license who has been divorced, has been received. From your letter it appears that the applicant was divorced in Nebraska; that he entered the army in the last war and that his copy of the decree was lost; that the court records were burned some time ago; and that it is now impossible to secure a

OPINION 49-35 September 21, 1949 (OPINION) COUNTY JUDGE RE: The Fact of Having Witnessed the Will Does Not Disqualify Further Actions by County Judge After It Has Been Admitted to Probate by a Disinterested Judge Your letter of September 19 addressed to the Attorney General has been received and contents of same have been noted. You refer to Sections 27-0719 and 27-0720 of the North Dakota Revised Code of 1943 which provides for situations in which a judge of the county court may be disqualified. You state that you have been disqualifie

OPINION 49-124 September 16, 1949 (OPINION) LIQUOR RE: Limitation of Licenses I have your letter of September 9 and contents of same have been noted. The question that you submit is whether or not the Ward County Commissioners may refuse to issue a beer license to an applicant who is properly qualified under the law to engage in the business of selling beer. You also enclose a copy of an opinion written by Mr. Alvin C. Strutz in which he takes the position that the county commissioners have no discretion and they must issue a license if the person making the application has t

OPINION 49-161 September 14, 1949 (OPINION) PLUMBING RE: Qualifications of Members of State Board Re: Section 43-1802 R.C. 1943 Your letter of September 13, asking our interpretation of the above section, has been received and referred to my desk. It is our opinion that neither of the members of the board who are required to be plumbers are required to be licensed plumbers at the time of their appointment. If they have been residents of the state for five years and have had five years' experience in the plumbing business in the classification to which they belong, they are e

OPINION 49-63 September 10, 1949 (OPINION) FEES RE: Discharging Real Estate Mortgage Your letter of August 30, 1949, to Honorable Wallace E. Warner, attorney general, has been received. In your letter you ask regarding the fee to be charged by the clerk of the district court for the filing of application and order in the matter of discharging a real estate mortgage. Your are informed, under the wording of the statute, this office holds that the filing fee in such cases is the sum of seven dollars and fifty cents. WALLACE E. WARNER Attorney General

OPINION 49-205 September 10, 1949 (OPINION) WELFARE RE: Duty to Investigate Re Adoptions Your letter of September 6, 1949, to the Honorable Wallace E. Warner, Attorney General, has been received. In your letter you refer to section 14-1109 of the 1943 Revised Code, pertaining to adoptions, which section provides that it is the duty of the public welfare board to make certain investigations. You also call our attention to section 50-0109 of the 1943 Revised Code, relative to the duties of the county welfare board, and you request the opinion of this office as to whether the publ

OPINION 49-137 September 1, 1949 (OPINION) OLD AGE AND SURVIVORS INSURANCE ACT You have asked this office for a construction of portions of chapter 52-09 of the 1947 Supplement, usually referred to as the "old Age and Survivor Insurance Act." There is a certain amount of confusion as to the meaning of various terms and definitions set out in the act. You will note that subsection F. of section 52-0920 undertakes to define a "fully insured individual", and you will note that section 52-0921 makes a provision as to when an employee may withdraw contributions from the fund. Sect

OPINION 49-88 August 30, 1949 (OPINION) INSANE PERSONS RE: Liability for Keep Re: Chapter 198 S.L. 1949 Yours regarding the above law has been received and referred to my desk. It is our opinion that chapter 198 of the Session Laws of 1949 makes no change in liability to the county for institutional care at the state hospital, the state school, or the state sanatorium. A patient discharged as cured, or his estate, if he dies at the institution, is liable. The new law merely makes the auditor responsible for keeping records so that the accounts can be kept account of and co

OPINION 49-97 August 24, 1949 (OPINION) INSURANCE RE: Use of Proceeds of Insurance on Village Hall Your letter of August 22, asking whether or not the village board may use the proceeds of the insurance of the village hall to put in new water mains in the village, has been referred to me for reply. It is our opinion that this may not easily be done. When an insured public building burns, the insurance money stands to the public exactly as the building did, and the money can legally be used only to replace the building burned. If your village no longer desires to have and own

OPINION 49-68 August 22, 1949 (OPINION) GAME AND FISH RE: Confiscation of Gun Re: Sections 20-1001 and 20-1003 1943 Revised Code Your letter of August 20, re the above sections, has been received. It is the opinion of this office that under the provisions of sections 20-1001 and 20-1003 any gun used by any person in the unlawful killing of game or unlawful hunting with intent to kill game is subject to confiscation. If makes no difference that the gun may belong to someone else. There may be some question if the gun is used without the knowledge of the owner whether or not

OPINION 49-60 August 19, 1949 (OPINION) FARGO POLICE PENSION ORDINANCE RE: Rights of Withdrawal Re: Chapter 40-45 R.C. 1943 Yours of the 17th inst. re Fargo Police Pension Ordinance has been received and referred to may desk. The Legislature had undoubted authority to enact chapter 40-45 found in the North Dakota Revised Code of 1943. We find no authority in section 40-0501 or 40-0502 N.D.R.C. giving cities any authority to enact ordinances relating to a pension system for the city. The only law relating to police pensions, therefore, is chapter 40-45. McQuillin says: "More

OPINION 49-202 August 18, 1949 (OPINION) VETERANS RE: Soldier's Bonus The following two statements express the opinion of the Attorney General's office as to two questions arising in the process of making adjusted compensation payments: 1. If the parents of the deceased veteran are entitled as next of kin to adjusted compensation, and the parents are divorced, both parents shall apply. The parents shall share equally in the compensation, and the fact that one parent was awarded custody of the deceased veteran shall not entitle that parent to the entire amount of the compe

OPINION 49-183 August 17, 1949 (OPINION) TAXATION RE: Motor Vehicle I am herewith returning letter from Mr. A. R. Bergesen, Attorney at Law, Fargo, North Dakota, dated August 11, 1949, wherein he takes issue with Regulation No. 2 of your department with reference to use tax. We have your request for an opinion on this matter. As we understand it, Mr. Bergesen has a client who owned an automobile upon which he had paid the sales tax in the state of North Dakota. He took said car to a foreign state and traded it for a new car and paid a sales tax in that foreign state upon th

OPINION 49-125 August 17, 1949 (OPINION) LIQUOR RE: Public Building This is in answer to your letter dated August 11, 1949, in which you ask, "Does a liquor establishment come under the heading of public building? Making them to comply with the State Law that all exits in public buildings must swing outward." Section 23-1304 of the North Dakota Revised Code of 1943 provides, "All doors of ingress and egress in all schoolhouses and churches within the limits of any city or village and in all other buildings used for public assemblages of any character in this state, including

OPINION 49-201 August 16, 1949 (OPINION) VETERANS RE: Soldier's Bonus I have your letter in which you request an opinion on the following questions relative to Chapter 236 of the North Dakota Session Laws of 1949. Questions are as follows: 1. To be entitled to receive the adjusted compensation payable to the unremarried widow of a deceased veteran must the deceased veteran's widow be unremarried at the time of endorsing the warrant issued as payment of her claim? 2. If a veteran or a beneficiary has filed an application for adjusted compensation and becomes deceased prio

OPINION 49-90 August 5, 1949 (OPINION) INSTITUTIONS RE: Sterilization Your letter of August 3, 1949, addressed to Mr. Wallace E. Warner, attorney general, has been received. In your letter you ask whether or not a guardian, referring specifically to Mr. Walter O. Burke, attorney, Williston, North Dakota, has the right to consent to sterilization on behalf of his ward who is an inmate of your institution. This question was ruled upon by the then attorney general on July 12, 1947. The question at that time before this office was, what should be done in a case of two minors who

OPINION 49-206 August 4, 1949 (OPINION) WELFARE RE: Mileage of Members of County Board Your letter of August 8, re mileage of members of the county welfare, board, has been received and referred to my desk. It seems clear to us that Chapter 50-01 makes members of the county welfare board county officials. There is no doubt of this in our minds. Chapter 297 of the Laws of 1949 provides that members shall be paid legal mileage for necessary travel. This is an amendment to the prior law which merely authorized payment to them of their actual expenses. Under the new law the

OPINION 49-129 July 29, 1949 (OPINION) MINERALS RE: Deeds Your letter of the 27th inst. re the above has been received and referred to my desk. Our court has held that mineral rights in land can be severed from surface rights by reservation in a deed, and such reservation is an interest in land. Northwestern Improvement Co. v. Oliver County, 38 N.D. 57, 164 N.W. 315. Mineral rights, being an interest in land, can be conveyed only by deed. Until there is a severance of the mineral rights from the surface right either by deed directly, or by reservation in a deed conveying

OPINION 49-151 July 26, 1949 (OPINION) OFFICERS RE: Judges' Retirement Your letter of July 21 addressed to the Attorney General has been received and contents duly noted. You refer to Chapters 206 and 207 of the Session Laws of 1949 relating to retirement and salaries of the judges of the district and supreme courts and you present five questions which I shall answer in the order presented. (1) The first question that arises under Chapter 206 relates to the payment or collection of the assessment made on the salaries of the judges. Do I deduct from the salary warrant issued

OPINION 49-87 July 23, 1949 (OPINION) HIGHWAY PATROL RE: Retirement Act I acknowledge receipt of your letter of July 20 requesting an opinion from this office on the so-called North Dakota Highway Patrolmen's Retirement Act, which is chapter 239 of the 1949 Session Laws of North Dakota, and more particularly, section 10 thereof. Section 10 reads as follows: "Contributions by the State of North Dakota." The state of North Dakota shall annually contribute to the fund a sum equal to the amount contributed by patrolmen to this fund from the driver's license fund." The question

OPINION 49-154 July 19, 1949 (OPINION) OFFICERS RE: Salary of Tax Commissioner Your letter of July 16 addressed to the Attorney General has been received and contents of same have been noted. You refer to subdivision 16 of Chapter 3 of the Session Laws of 1949 (House Bill 54) which appropriates $9600.00 for the salary of the tax commissioner for the current biennium, and you state that the question has been raised as to whether or not the state auditor should comply with this particular salary item. The question as to whether or not the state auditor should issue salary warran

OPINION 49-64 July 16, 1949 (OPINION) FEES RE: No Filing Fee for Determination of Inheritance Tax Re: Section 27-0740 1947 Supplement. Your letter of July 14, 1949, has been received and sent to my desk. I understand the general rule to be that no fee is chargeable by any county officer for any official act performed by him, unless the statute expressly provides for such fee, and courts have held that the charging of an illegal fee is ground for the removal of the officer. The fees to be charged by the county court are those provided by section 27-0740 of the 1947 Supplement.

OPINION 49-89 July 7, 1949 (OPINION) INSTITUTIONS RE: Lisbon Soldiers Home This is in reply to your letter of June 24 addressed to the Attorney General. You refer to Senate Bill No. 108 which is chapter 85 of the Session Laws of 1949 which appropriated an additional amount for the completion of the new building, equipment, etc. for the North Dakota Soldiers Home at Lisbon. The first item of the bill calls for general work finishing second and third floors, and you have a statement authorizing an additional expenditure of $73,034 to Meinecke& Johnson for the completion of sec

OPINION 49-185 June 30, 1949 (OPINION) TAXATION RE: Sales Tax Your letter of June 29 addressed to the Attorney General has been received and contents of same have been noted. You refer to House Bill No. 163 enacted by the legislature which is the sales tax act effective July 1, 1949, and expires by its own limitation on June 30, 1951. This act levies a tax of two percent upon the gross receipts from all sales of merchandise, except as otherwise provided in the act, sold at retail in the state of North Dakota to consumers or users. A like rate is also imposed upon the gross

OPINION 49-175 June 11, 1949 (OPINION) STATE HISTORICAL SOCIETY RE: Liability for Alleged Fire Your letter of June 9, enclosing a copy of the letter of Mr. and Mrs. Pulkrabek, of May first, has been received. Under the circumstances stated in your letter, there is no possibility of the state being liable for any damages. Even if it could be shown that the fire had been started by someone working for the Historical Society in the park, there would be no liability on the state. If it could be shown that the fire was started by the negligence of any individual or the intention

OPINION 49-82 June 4, 1949 (OPINION) GAME AND FISH RE: Rights of Owner to Hunt Your letter to Honorable Wallace E. Warner, attorney general, has been received. In your letter you ask if a landowner or tenant has the right at any time of the year to kill protected birds or animals, such as pheasants and deer which may be depredating crops on land owned or leased by him. In answer thereto, will say that it is our opinion that the landowner of tenant is not allowed to hunt game, such as you describe, out of season. While such game may be depredating crops, the problem for reco